GEORGE JACOB PROPRIETOR M/S WAYANAD RESINS PUNNAPPALA Vs. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM

JUDGEMENT

(1.) THE issue involved in this case is, whether the excess input tax credit remaining unadjusted as on 31.02.2006 can be adjusted towards the tax due for the period 2006 - '07 or whether the petitioner is dis-entitled from having the benefit of refund, if the application in 'form 21 CC' to be submitted under Rule 47A of the KVAT Rules is beyond three months.

(2.) THE case projected by the petitioner is that he is a dealer registered under the rolls of the 4th respondent and there was some excess input tax credit brought forth from the previous years. THE petitioner sought for adjustment of the same in respect of the subsequent liability, which was declined by the department, pointing out that, in view of the change in the statutory prescription, the petitioner could only claim refund in application to be preferred in 21 CC. Accordingly, the petitioner forwarded the necessary application as per Ext. P1 communication. But, the same was rejected by the fourth respondent, stating that, the claim could not be entertained in view of the specific bar under Rule 47 A of the KVAT Rules, stipulating that the period for submitting such application was only three months. THE petitioner has approached this Court challenging the course pursued by the respondents, contending that there is no provision in the 'Act' mentioning any such limitation for claiming refund and that the restraint brought forth as per Rule 47 A, which is only a delegated legislation, cannot add or amend the provisions under the 'Act', as the Rules have to subserve the enactment and never beyond.

(3.) AFTER hearing both the sides, this Court finds that the time for filing application for refund extended by the Commissioner, as notified by Circular No. 9/2007 dated 20.02.2007, was till 28.07.2009. This being the position, the application preferred by the petitioner for refund on 26.08.2008 has necessarily to be considered as well within the time. Hence, the matter requires to be reconsidered in the light of the above crucial aspect, more so, when the earlier rejection order has been set aside, remanding the matter for fresh consideration. In the above circumstances, the writ petition is disposed of, directing the 4th respondent to reconsider and finalize the proceedings in the light of the observations as stated above, passing fresh orders, in accordance with law, as expeditiously as possible, at any rate, within two months. It is also made clear that, if any amounts are found due to the petitioner as above, the same shall be given due credit to against the future liability of the petitioner in respect of the subsequent years.